Prabhakaran K. v. , S/o Kallattuvalappil K. K. Velayudhan VS State Of Kerala
2024-11-21
ANIL K.NARENDRAN, MURALEE KRISHNA S.
body2024
DigiLaw.ai
JUDGMENT : Anil K. Narendran, J. The petitioners have filed this writ petition under Article 226 of the Constitution of India, seeking a writ of mandamus commanding the 4 th respondent Land Tribunal, Thrissur to pass orders in S.M.Proceedings Nos.2681/2015, 4143/2015 and 2191/2015 filed for issuing purchase certificate under Section 72K of the Kerala Land Reforms Act, 1963, as directed by the Appellate Authority (Land Reforms), Thrissur, under Section 102 of the said Act, by Ext.P5 order dated 28.10.2019 in A.A.No.63 of 2019, Ext.P5(a) order dated 28.10.2019 in A.A.No.64 of 2019 and Ext.P5(b) order dated 30.11.2019 in A.A.No.18 of 2019, within a time frame as may be fixed by this Court; a writ of mandamus commanding the 2 nd respondent District Collector, Thrissur to pass orders on Ext.P9 Revision Petition dated 07.12.2023 filed by the 1 st petitioner, Ext.P10 Revision Petition filed by the 2 nd petitioner and Ext.P11 Revision Petition filed by the 3 rd petitioner, under Section 16(4) of the Kerala Land Conservancy Act, 1957, after affording them an opportunity of being heard, and until then direct the 5 th respondent Special Tahsildar (Land Conservancy), Cochin Devaswom Board, not to evict them from their respective properties. Ext.P9 revision petition filed by the 1 st petitioner arises out of Ext.P7 order dated 17.08.2020 of the 3 rd respondent Sub Collector (RDO), Thrissur, in an appeal filed by the said petitioner under Section 16(1)(b) of the said Act, challenging Ext.P3 order dated 06.06.2019 of the 5 th respondent Special Tahsildar (Land Conservancy), in the exercise of the powers under Section 15 of the said Act, on the ground that the petitioners and others have encroached the land of ‘Kuttumukku Devaswom’ under the management of Cochin Devaswom Board, comprised in Survey No.211/2 of Vilvattom Village. 2. Though the reliefs sought for in this writ petition are in respect of land comprised in Survey No.211/2 of Vilvattom Village of Kuttumukku Devaswom under the management of the Cochin Devaswom Board, the petitioners have chosen to file this writ petition before this Court, without Cochin Devaswom Board, represented by its Secretary as a respondent in the party array. When it was noticed, they filed I.A.No.2 of 2024, which was allowed by the order dated 10.06.2024, whereby Cochin Devaswom Board, represented by its Secretary, was impleaded as additional 6 th respondent. 3.
When it was noticed, they filed I.A.No.2 of 2024, which was allowed by the order dated 10.06.2024, whereby Cochin Devaswom Board, represented by its Secretary, was impleaded as additional 6 th respondent. 3. Along with I.A.No.1 of 2024, the petitioners have placed on record Exts.P10 and P11 additional documents, which was followed by I.A.No.3 of 2024 to accept Ext.P12 as an additional document. On behalf of the additional 6 th respondent Cochin Devaswom Board, a counter affidavit dated 24.06.2024 is placed on record, opposing the reliefs sought for in the writ petition, producing therewith Exts.R6(a) to R6(c) documents. Petitioners have filed a reply affidavit dated 16.07.2024, producing therewith Exts.P13 to P31 documents. 4. Heard the learned Senior Counsel for the petitioners, the learned Senior Government Pleader for respondents 1 to 4 and the learned Standing Counsel for Cochin Devaswom Board for the 5 th respondent and also for additional 6 th respondent. 5. According to the petitioners, the land having an extent of 1.72 Acres in Survey No.211/2 of Vilvattom Village was ‘Verumpattom’ right holding of one Parameswara Menon, who was holding the land as a cultivating tenant as defined under clause (8) of Section 2 the Kerala Land Reforms Act. Parameswara Menon, vide Verumpattom sale deed No.1790/1974 dated 05.06.1974 of the Sub Registrar Office, Thrissur, sold the property to one Gopalan Nair. After the death of Gopalan Nair, the property was partitioned by his legal heirs, vide partition deed No.2474 of 1997 dated 07.05.1997 of the Sub Registrar Office, Thrissur. The 1 st petitioner obtained 62.5 cents of land in Survey No.211/2 of Vilvattom Village from the legal heirs of Gopalan Nair vide sale deed Nos.2021 of 2005, 2922 of 2005 and 2923 of 2005 of the Sub Registrar Office, Thrissur. The 2 nd petitioner obtained 8.5 cents of land in Survey No.211/2 of Vilvattom Village from the legal heirs of Gopalan Nair vide sale deed No.4322 of 2005 of the Sub Registrar Office, Thrissur. The 3 rd petitioner obtained an extent of 10 cents of land in Survey No.211/2 of Vilvattom Village from the legal heirs of Gopalan Nair, vide sale deed No.6051 of 2004 of the Sub Registrar Office, Thrissur. An extent of 31 cents (12.54 ares) in Survey No.211/2 of Vilvattom Village, owned by Gopalan Nair, was purchased by one C.V. George from the legal heirs of Gopalan Nair.
An extent of 31 cents (12.54 ares) in Survey No.211/2 of Vilvattom Village, owned by Gopalan Nair, was purchased by one C.V. George from the legal heirs of Gopalan Nair. The said George obtained Ext.P1 purchase certificate dated 11.05.2015 from the 4 th respondent Land Tribunal, Thrissur, in S.M. Proceedings No.812/2009. Ext.P2 is a copy of the proceedings dated 11.11.2014 of the Land Tribunal in S.M. Proceedings No.812/2009. As evident from Ext.P2 order, in S.M. Proceedings No.812/2009 before the Land Tribunal, ‘Sreekrishnapuram Devaswom’ was arrayed as the respondent-land owner. 6. Exhibit P3 is a copy of the order dated 06.06.2019 issued by the 5 th respondent Special Tahsildar (Land Conservancy), Cochin Devaswom Board, under the provisions of the Kerala Land Conservancy Act, to the petitioners herein and others, on the ground that they have encroached upon the land of ‘Kuttumukku Devaswom’ comprised in Survey No.211/2 of Vilvattom Village. A reading of Ext.P3 order would show that in the Basic Tax Register of Vilvattom Village, the property is described as Survey No.211/2 ‘Sreekrishnapurathu Parambu Puramboke’, 1.72 Acres ‘Sreekrishnapuram Ambalaparambu’. Ext.P3 order refers to a request dated 14.12.2017 of the Devaswom Officer, Kuttumukku Devaswom, to the 5 th respondent Special Tahsildar (Land Conservancy), to initiate appropriate proceedings under the Kerala Land Conservancy Act. The said order also refers to a letter dated 01.11.2017 issued by the additional 6 th respondent Cochin Devaswom Board. In S.M. proceedings No.2681/2015, the request made by the 1 st petitioner for purchase certificate stands rejected by Ext.P4 order dated 16.05.2019 of the 4 th respondent Land Tribunal, Thrissur, on the ground that as per the settlement register and Basic Tax Register (BTR) abstract submitted by the Village Officer, Vilvattom, Survey No.211/2 is marked as ‘puramboke’ and in the remarks column as ‘Sreekrishnapuram Devaswom land’. In S.M. proceedings Nos.4143/2015 and 2191/2015, the requests made by the 2 nd and 3 rd petitioners for purchase certificates were also rejected stating the very same reason, by separate orders. The appeals filed by the petitioners before the Appellate Authority (Land Reforms), Thrissur as A.A.Nos.63 of 2019, 64 of 2019 and 18 of 2019, invoking the provisions under Section 102 of the Kerala Land Reforms Act, 1963 were allowed by Exts.P5, P5(a) and P5(b) orders dated 28.10.2019 and 30.11.2019, whereby the matter is remanded to the 4 th respondent Land Tribunal, Thrissur, for fresh consideration.
In the said order, the Appellate Authority noticed Ext.P2 proceedings dated 11.11.2014 of the 4 th respondent Land Tribunal in S.M. Proceedings No.812/2009 granting purchase certificate to C.V. George in respect of 31 cents land in Survey No.211/2 of Vilvattom Village and the proceedings pending before the 3 rd respondent Sub Collector (RDO) against the proceedings initiated by the 5 th respondent Tahsildar (Land Conservancy), vide Ext.P3 order dated 06.06.2019, under the provisions of the Kerala Land Conservancy Act, regarding encroachment of Devaswom Land. 7. The proceedings initiated by Ext.P3 order dated 06.06.2019 of the 5 th respondent Special Tahsildar (Land Conservancy), invoking the provisions under the Kerala Land Conservancy Act, regarding encroachment of the land of Kuttumukku Devaswom, was challenged before the 3 rd respondent Sub Collector, by Jaleesh Peter and Fiba Rani John, who claimed title over the land having an extent of 0.0405 hectors in Survey No.211/2 of Vilvattom Village and another extent of 0.0405 hectors in Survey No.211/2 of Vilvattom Village, vide document Nos.499/2018 and 3064/2018 of the Sub Registrar Office, Thrissur. As evident from Ext.P6 order dated 27.01.2020 of the 3 rd respondent Sub Collector, the Cochin Devaswom Board raised a specific contention that Ext.P1 purchase certificate obtained by C.V. George from the 4 th respondent Land Tribunal, Thrissur in respect of the land comprised in Survey No.211/2 of Vilvattom Village owned by the deity, who is a perpetual minor, is not one obtained in accordance with law. However, by Ext.P6 order dated 27.01.2020, the 3 rd respondent Sub Collector set aside the proceedings under the Kerala Land Conservancy Act, taken by the 5 th respondent Special Tahsildar (Land Conservancy) pursuant to Ext.P3 order dated 06.09.2019, against the said persons, on the ground that C.V. George has obtained Ext.P1 purchase certificate in respect of the said land. 8. Ext.P3 order dated 06.06.2019 of the 5 th respondent Special Tahsildar (Land Conservancy) was under challenge in three appeals filed by the petitioners before the 3 rd respondent Sub Collector (RDO), Thrissur, invoking the provisions under Section 16(1)(b) of the Kerala Land Conservancy Act. Those appeals ended in dismissal by Ext.P7 order dated 17.08.2020 in the case of the 1 st petitioner and similar orders issued in the case of the 2 nd and 3 rd petitioners.
Those appeals ended in dismissal by Ext.P7 order dated 17.08.2020 in the case of the 1 st petitioner and similar orders issued in the case of the 2 nd and 3 rd petitioners. Against those orders, the petitioners have filed Exts.P9 to P11 revision petitions before the 2 nd respondent District Collector, invoking the provisions under Section 16(4) of the said Act, which are now pending consideration. 9. Along with the reply affidavit filed by the petitioners to the counter affidavit filed by the 6 th respondent Cochin Devaswom Board, various documents have been placed on record as Exts.P13 to P31, in support of the claim made by them in respect of their respective holdings in Survey No.211/2 of Vilvattom Village. In the reply affidavit, it is stated that the land in question was originally on Verumpattom tenancy with Parameswara Menon as per registered Verumpattom Chit No.160 of 1954 in favour of the Secretary, Cochin Devaswom Board. Parameswara Menon mortgaged the said land by way of simple mortgage as per Ext.P17 mortgage deed No.3315 of 1970 of the Sub Registrar Office, Thrissur. Subsequently, he sold the said land to Gopalan Nair, vide Ext.P18 Verumpattom Sale Deed No.1790 of 1974 of the Sub Registrar Office, Thrissur. Gopalan Nair died and his legal heirs partitioned the said land vide Ext.P20 partition deed No.2474/1/97 dated 07.05.1997 of the Sub Registrar Office, Thrissur. The document marked as Ext.P19 is a copy of family membership certificate dated 02.12.2004 issued by the Village Officer, Vilvattom to the legal heirs of Gopalan Nair. The documents marked as Exts.P21 to P23 are basic tax receipts dated 20.05.2002, 22.11.2004 and 25.06.2003 in favour of the legal heirs of Gopalan Nair. The document marked as Ext.P24 is a copy of the basic tax receipt dated 13.10.2003 in the name of the 3 rd petitioner. The documents marked as Exts.P25 to P27 are sale deed Nos.2921 of 2005, 2922 of 2005 and 2923 of 2005 dated 28.03.2005 of the Sub Registrar Office, Thrissur executed by Rajagopalan, S/o.Gopalan Nair, in favour of the 1 st petitioner for a total extent of 62 cents (21+21+20.5). The document marked as Ext.P28 is sale deed No.6051 of 2004 dated 10.09.2004 executed by the power of attorney holder of Ramachandran, S/o.Gopalan Nair, in favour of the 2 nd petitioner.
The document marked as Ext.P28 is sale deed No.6051 of 2004 dated 10.09.2004 executed by the power of attorney holder of Ramachandran, S/o.Gopalan Nair, in favour of the 2 nd petitioner. The document marked as Ext.P29 is sale deed No.4322 of 2005 dated 10.06.2005 executed by Ushadevi, D/o.Gopalan Nair, in favour of the 3 rd petitioner. The document marked as Ext.P30 is a copy of order dated 18.12.2018 of the 4 th respondent Land Tribunal, Thrissur in S.M. Proceedings No.2191/2015, whereby the request made by the 3 rd petitioner for purchase certificate stands rejected for the reasons stated therein. After the order of remand by Exts.P5, P5(a) and P5(b) orders of the Appellate Authority (Land Reforms), Thrissur, S.M. Proceedings Nos.2681/2015, 4143/2015 and 2191/2015 are now pending consideration before the 4 th respondent Land Tribunal, Thrissur. 10. Along with the counter affidavit dated 24.06.2024 filed by the 6 th respondent Cochin Devaswom Board, Ext.R6(b) communication dated 05.09.2022 issued by the 2 nd respondent District Collector is placed on record, whereby the application made by the Board for obtaining a certified copy of Ext.P1 purchase certificate in S.M. Proceedings No.812/2009 issued by the 4 th respondent Land Tribunal, Thrissur, in favour of C.V. George, in respect of 31 Cents of land in Survey No.211/2 of Vilvattom Village stands rejected for the reason that the files could not be traced out. By the order dated 09.08.2024, the learned Senior Government Pleader was directed to get instructions in that regard, from the 2 nd respondent District Collector. 11. Today, when this matter is taken up for consideration, the learned Senior Government Pleader has made available for the perusal of this Court the files relating to Ext.P1 purchase certificate dated 11.05.2015 issued by the 4 th respondent Land Tribunal, Thrissur, in S.M. Proceedings No.812/2009. As discernible from the files, Cochin Devaswom Board, represented by its Secretary was not made a party in the S.M. Proceedings No.812/2009 before the Land Tribunal, which culminated in the issuance of Ext.P1 purchase certificate, instead the Devaswom Officer, ‘Sreekrishnapuram Devaswom’ was arrayed as a respondent in that proceedings. A perusal of the said files would also show that the notice issued to the Devaswom Officer, Sreekrishnapuram Devaswom returned as ‘refused’. The files contain an envelope in which such an endorsement was made by the postal authorities on 19.09.2010. 12.
A perusal of the said files would also show that the notice issued to the Devaswom Officer, Sreekrishnapuram Devaswom returned as ‘refused’. The files contain an envelope in which such an endorsement was made by the postal authorities on 19.09.2010. 12. The learned Standing Counsel for Cochin Devaswom Board would point out that in Ext.P2 proceedings dated 11.11.2014 of the 4 th respondent Land Tribunal granting purchase certificate to C.V. George, in respect of 31 Cents of land in Survey No.211/2 of Vilvattom Village, it is stated that ‘E Form notice’ was served on the concerned Devaswom authorities, i.e., Sreekrishnapuram Devaswom and no objection was received. The learned Standing Counsel would also point out the stand taken by the Board in paragraph 3 of the counter affidavit filed in this writ petition that for reasons best known to C.V. George, the applicant in S.M. Proceedings No.812/2009, Cochin Devaswom Board was not made a party to that proceedings. Further, there is no Devaswom by the name ‘Sreekrishnapuram Devaswom’ under Cochin Devaswom Board and the property in question comes under ‘Kuttumukku Devaswom’. A reading of Ext.P3 order of the 5 th respondent Special Tahsildar (Land Conservancy) would show that in the Basic Tax Register, the property in Survey No.211/2 of Vilvattom Village is described as ‘Sreekrishnapurathu Parambu Puramboke’, 1.72 Acres ‘Sreekrishnapuram Ambalaparambu’. 13. ’Deva’ means God and ’swom’ means ownership in Sanskrit and the term ’Devaswom’ denotes the property of God in common parlance. See: Prayar Gopalakrishnan and another v. State of Kerala and others [ 2018 (1) KHC 536 ] 14. In A.A. Gopalakrishnan v. Cochin Devaswom Board [ (2007) 7 SCC 482 ] a Three-Judge Bench of the Apex Court held that the properties of deities, temples and Devaswom Boards are required to be protected and safeguarded by their trus- tees/archakas/shebaits/employees. Instances are many where persons entrusted with the duty of managing and safeguarding the properties of temples, deities and Devaswom Boards have usurped and misappropriated such properties by setting up false claims of ownership or tenancy, or adverse possession. This is possible only with the passive or active collusion of the authorities concerned. Such acts of ‘fence eating the crops’ should be dealt with sternly. The Government, members or trustees of boards/trusts, and devotees should be vigilant to prevent any such usurpation or encroachment.
This is possible only with the passive or active collusion of the authorities concerned. Such acts of ‘fence eating the crops’ should be dealt with sternly. The Government, members or trustees of boards/trusts, and devotees should be vigilant to prevent any such usurpation or encroachment. It is also the duty of courts to protect and safeguard the properties of religious and charitable institutions from wrongful claims or misappropriation. 15. In Travancore Devaswom Board v. Mohanan Nair [ 2013 (3) KLT 132 ] a Division Bench of this Court noticed that in A.A. Gopalakrishnan [ (2007) 7 SCC 482 ] the Apex Court emphasised that it is the duty of the courts to protect and safeguard the interest and properties of the religious and charitable institutions. The relevant principles under the Hindu law will show that the Deity is always treated similar to that of a minor and there are some points of similarity between a minor and a Hindu idol. The High Court therefore is the guardian of the Deity and apart from the jurisdiction under Section 103 of the Land Reforms Act, 1963 viz. the powers of revision, the High Court has inherent jurisdiction and the doctrine of parens patriae will also apply in exercising the jurisdiction. Therefore, when a complaint has been raised by the Temple Advisory Committee, which was formed by the devotees of the Temple, about the loss of properties of the temple itself, the truth of the same can be gone into by the High Court in these proceedings. 16. In Nandakumar v. District Collector and others [ 2018 (2) KHC 58 ] a Division Bench of this Court noticed that the legal position has been made clear by the Apex Court as to the role to be played by the High Court in exercising the ‘parens patriae’ jurisdiction in A.A. Gopalakrishnan [(2007) 7 SCC 482] . The said decision was referred to and relied on by a Division Bench of this Court in Mohanan Nair [ 2013 (3) KLT 132 ] . In the said circumstances, the properties of the Devaswom, if at all encroached by anybody and if any assignment/ conveyance has been effected without the involvement of the Devaswom, securing ‘pattayam’ or such other deeds, the same cannot confer any right upon the parties concerned, unless the title so derived is clear in all respects.
In the said circumstances, the properties of the Devaswom, if at all encroached by anybody and if any assignment/ conveyance has been effected without the involvement of the Devaswom, securing ‘pattayam’ or such other deeds, the same cannot confer any right upon the parties concerned, unless the title so derived is clear in all respects. There cannot be any dispute that the remedy to retrieve such property belonging to the Devaswom is by resorting to the course stipulated in the Kerala Land Conservancy Act, 1957. 17. In A.A. Gopalakrishnan v. Secretary, Cochin Devaswom Board [ 2018 (3) KHC 549 ] a Division Bench of this Court found that the task undertaken by the complainant to ensure that the property of the Devaswom is protected and preserved has ultimately brought out the plain truth that the said property was sought to be appropriated by strangers and that the property in Sy.No.1042/2 has been successfully retrieved by the Devaswom, based on the intervention made by this Court and also by the Apex Court in A.A. Gopalakrishnan [ (2007) 7 SCC 482 ] Proceedings have to be taken to a logical conclusion in respect of the land in Sy.No. 1043 as well. This is more so since in view of the ‘parens patriae’ jurisdiction being entrusted with the Court in this regard, there is a duty cast upon the Court to take every step to ensure that the property of the deity is protected. 18. In Jayaprakashan K. v. State of Kerala and others, [2023 (3) KHC SN 14 : 2023 (3) KLT 541 ] a Division Bench of this Court, in which one among us [Anil K. Narendran, J.] was a party, noticed that in view of the provisions under sub-section (1) of Section 3 of the Kerala Land Reforms Act, 1963, nothing in Chapter II (i.e., provisions regarding tenancies) shall apply to leases or tenancies of land referred to in clauses (i) to (xii) of the said sub-section.
As per clause (x) of sub-section (1) of Section 3, nothing in Chapter II shall apply to tenancies in respect of sites, tanks and premises of any temple, mosque or church (including sites belonging to a temple, mosque or church on which religious ceremonies are conducted) and sites of office buildings and other buildings attached to such temple, mosque or church, created by the owner, trustee or manager of such temple, mosque or church. In view of the provisions under sub-section (1) of Section 74, after the commencement of the Act, no tenancy shall be created in respect of any land. As per sub-section (2) of Section 74, any tenancy created in contravention of the provisions of sub-section (1) shall be invalid. In view of the provisions under sub-section (1) of Section 57, as soon as may be after the receipt of the application under Section 54, the Land Tribunal shall give notice to the landowner, the intermediaries and all other persons interested in the holding, to prefer claims or objections with regard to the application. As per sub-section (2) of Section 57, the land Tribunal shall, after considering the claims and objections received and hearing any person appearing in pursuance of the notice issued under sub-section (1) and after making due enquiries, pass orders - (i) on the application, if any, pending before it from the landowner or intermediary for resumption in accordance with the provisions of Section 22; and (ii) on the application for purchase under Section 54. In view of the provisions under sub-section (1) of Section 72, on a date to be notified by the Government in this behalf in the Gazette, all right, title and interest of the landowners and intermediaries in respect of holdings held by cultivating tenants (including holders of kudiyiruppus and holders of karaimas) entitled to fixity of tenure under Section 13 and in respect of which certificates of purchase under sub-section (2) of Section 59 have not been issued, shall, subject to the provisions of this section, vest in the Government free from all encumbrances created by the landowners and intermediaries and subsisting thereon on the said date.
In view of the provisions under sub- section (1) of Section 72B, the cultivating tenant of any holding or part of a holding, the right, title and interest in respect of which have vested in the Government under Section 72, shall be entitled to assignment of such right, title and interest. As per clause (a) to the proviso to sub-section (1) of Section 72B, no cultivating tenant shall be entitled to assignment of the right, title and interest in respect of any holding or part of a holding under this section if he, or if he is a member of a family, such family, owns an extent of land not less than the ceiling area. As per clause (b) to the proviso to sub-section (1) of Section 72B, where the cultivating tenant or, if he is a member of a family, such family, does not own any land or owns an extent of land which is less than the ceiling area, he shall be entitled to the assignment of the right, title and interest in respect of only such extent of land as will, together with the land, if any, owned by him or his family, as the case may be, be equal to the ceiling area. In view of the provisions under sub- section (1) of Section 72BB, any landowner or intermediary whose right, title and interest in respect of any holding have vested in the Government may apply to the Land Tribunal for the assignment of such right, title and interest to the cultivating tenant and for the payment of the compensation due to him under Section 72A. As per Section 72C, notwithstanding anything contained in sub-section (3) of Section 72B or Section 72BB, the Land Tribunal may, subject to such rules as may be made by the Government in this behalf, at any time after the vesting of the right, title and interest of the landowners and intermediaries in the Government under Section 72, assign such right, title and interest to the cultivating tenants entitled thereto, and the cultivating tenants shall be bound to accept such assignment. In view of the provisions under Section 72F, the Land Tribunal has to issue notices and determine the compensation and purchase price.
In view of the provisions under Section 72F, the Land Tribunal has to issue notices and determine the compensation and purchase price. As per sub-section (1) of Section 72F, as soon as may be after the right, title and interest of the landowner and the intermediaries, if any, in respect of a holding or part of a holding have vested in the Government under Section 72, or, where an application under Section 72B or Section 72BB has been received by the Land Tribunal, as soon as may be after the receipt of such application, the Land Tribunal shall publish or cause to be published a public notice in the prescribed form in such manner as may be prescribed, calling upon the landowner, the intermediaries, if any and cultivating tenant; and all other persons interested in the land, the right, title and interest in respect of which have vested in the Government, to prefer claims and objections, if any, within such time as may be specified in the notice and to appear before it on the date specified in the notice with all relevant records to prove their respective claims or in support of their objections. As per the mandate of sub-section (5) of Section 72F, the land Tribunal shall, after considering the claims and objections received in pursuance of the notice issued under sub-section (1) or sub- section (2) and the advice received from the village committee or village committees before the date specified therefor and hearing any person appearing in pursuance of the notice issued under sub- section (1) or sub-section (2) and after making due enquiries, pass an order specifying the matters enumerated in clauses (a) to (i) of sub-section (5). As per sub-section (1) of Section 72K, as soon as may be after the determination of the purchase price under Section 72F or the passing of an order under sub-section (3) of Section 72MM the Land Tribunal shall issue a certificate of purchase to the cultivating tenant, and thereupon the right, title and interest of the landowner and the intermediaries, if any, in respect of the holding or part thereof to which the certificate relates, shall vest in the cultivating tenant free from all encumbrances created by the landowner or the intermediaries if any. 19.
19. In Jayaprakashan K. [2023 (3) KHC SN 14] the Division Bench, on an analysis of the aforesaid provisions under the Kerala Land Reforms Act, found that the said Act is a complete code by itself as far as the right of cultivating tenant to fixity of tenure in respect of his holding, the right of the cultivating tenant to get assignment of the right, title and interest in respect of his holdings, the determination by the Land Tribunal the compensation and purchase price and the issuance of purchase certificate to the cultivating tenant. The provisions under the said Act deal with the application for the purchase of the landlord’s right by the cultivating tenant and the procedure for consideration of the application by the Land Tribunal, with notice to the landowner, the intermediaries, if any, the cultivating tenant and all persons interested in the land, calling upon them to prefer claims and objections, if any, and after making due enquiries. Thereafter, the Land Tribunal shall issue a certificate of purchase to the cultivating tenant. In view of the provisions under the Kerala Land Reforms (Tenancy) Rules, where the Land Tribunal is of the opinion that an application for purchase certificate has to be allowed, it shall, before it passes an order under Section 57, prepare preliminary findings on the matters enumerated in clauses (a) to (m) of sub-rule (1) of Rule 55. The Land Tribunal shall issue a notice of its findings to the landowner, every intermediary, etc., calling upon them to prefer in writings claims for the purchase price or part thereof. On receipt of the objections or claims, if any, the Land Tribunal shall consider the same and decide the claims after giving reasonable opportunity to the parties to produce such evidence as may be necessary and then proceed to pass an order under Section 57 of the Act. In such an order passed by the Land Tribunal on an application filed under Section 54 of the Act by the cultivating tenant for purchase of landlord’s right, the Land Tribunal has to record its finding that the applicant is a cultivating tenant, as defined under clause (8) of Section 2 of the Act, who is entitled to fixity of tenure under Section 13 of the Act, in respect of his holding.
The tenancy is not in respect of land falling under clauses (i) to (xii) of Section 3 of the Act, which deals with exemptions. The tenancy is not one created in contravention of the provisions of sub-section (1) of Section 74 of the Act, i.e., it is not a tenancy created after the commencement of the Act. It is well settled that, when the statute requires to do certain thing in a certain way, the thing must be done in that way or not at all. Other methods or modes of performance are impliedly and necessarily forbidden. The said proposition of law is based on a legal maxim ’expressio unius est exclusio alterius’ meaning thereby that, if the statute provides for a thing to be done in a particular manner, then it has to be done in that manner and in no other manner, and following another course is not permissible. The said proposition of law about limitation of the exercise of statutory power has first been identified by Jassel M.R. in the case of Taylor v. Taylor [(1876) 1 Ch.D. 426] , wherein it was laid down that, where a power is given to do a certain thing in a certain way, that thing must be done in that way, or not at all, and that other methods of performance are necessarily forbidden. The Privy Council applied the said principle in the case of Nazir Ahmed v. King Emperor, [ AIR 1936 PC 253 ] . In Breen v. Amalgamated Engineering Union, (1971 (1) All ER 1148) Lord Denning, M.R. observed that the giving of reasons is one of the fundamentals of good administration. In Alexander Machinery (Dudley) Ltd. v. Crabtree, (1974 ICR 120) it was observed that failure to give reasons amounts to denial of justice. Reasons are live links between the mind of the decision-taker to the controversy in question and the decision or conclusion arrived at. By the order dated 15.12.2021 in W.P.(C)No.8851 of 2020, this Court restrained all Land Tribunals in the State from proceedings with any Original Application filed before the appointed date or S.M. Proceedings for purchase certificate in respect of Devaswom lands of Temples under the control/management of Malabar Devaswom Board, Travancore Devaswom Board and also the Cochin Devaswom Board, without the respective Devaswom Board, represented by its Secretary, in the party array.
In the said order, it was made clear that a copy of the Original Application or the report and other materials based on which S.M. Proceedings are initiated shall be enclosed along with the notice issued to the concerned Devaswom Board, through the concerned Village Officer. The Land Tribunals were directed to afford a reasonable opportunity to the concerned Devaswom Board to raise its contentions, both legal and factual. It was made clear that the decision taken by the Land Tribunals shall be one reflecting the legal and factual contentions raised by both sides. 20. In Jayaprakashan K. [2023 (3) KHC SN 14] , in continuation of the order dated 15.12.2021 in W.P.(C)No.8851 of 2020, it was ordered that, in the orders passed by the Land Tribunals in the State in Original Applications/S.M. Proceedings for purchase certificate, the Land Tribunal has to record its findings that the applicant is a cultivating tenant, as defined under clause (8) of Section 2 of the Act, who is entitled to fixity of tenure under Section 13 of the Act, in respect of his holding; that the tenancy is not in respect of land falling under clauses (i) to (xii) of Section 3 of the Act, which deals with exemptions; and that the tenancy is not one created in contravention of the provisions of sub-section (1) of Section 74 of the Act, i.e., it is not a tenancy created after the commencement of the Act. In respect of temples which are controlled institutions under Malabar Devaswom Board, the Land Tribunals shall take note of the provisions under Section 29 of the Madras Hindu Religious and Charitable Endowments Act, 1951, as per which any exchange, sale or mortgage and any lease of any immovable property belonging to, or given or endowed for the purpose of, any religious institution shall be null and void unless it is sanctioned by the Commissioner as being necessary or beneficial to the institution. 21. The temples under Kuttumukku Devaswom are (i) Kuttumukku Sivan Temple, (ii) Cheruthrikkovu Krishnan Temple, (iii) Navathrikkovu Sivan Temple, (iv) Sreekrishnapuram Krishnan Temple, (v) Maruthur Devi Temple and (vi) Thenkulangara Kali Temple. As already noticed hereinbefore, a reading of Ext.P3 order of the 5 th respondent Special Tahsildar (Land Conservancy) would show that in the Basic Tax Register, the property in Survey No.211/2 of Vilvattom Village is described as ‘Sreekrishnapurathu Parambu Puramboke’, 1.72 Acres ‘Sreekrishnapuram Ambalaparambu’.
As already noticed hereinbefore, a reading of Ext.P3 order of the 5 th respondent Special Tahsildar (Land Conservancy) would show that in the Basic Tax Register, the property in Survey No.211/2 of Vilvattom Village is described as ‘Sreekrishnapurathu Parambu Puramboke’, 1.72 Acres ‘Sreekrishnapuram Ambalaparambu’. Out of the said 1.72 Acres of land, C.V. George, who purchased 31 cents (12.54 Ares) from the legal heirs of Gopalan Nair, obtained Ext.P1 purchase certificate dated 11.05.2015 from the 4 th respondent Land Tribunal, Thrissur, in S.M. Proceedings No.812/2009, based on Ext.P2 proceedings dated 11.11.2014 of the Land Tribunal. As evident from Ext.P2 order, in S.M. Proceedings No.812/2009 before the Land Tribunal, ‘Sreekrishnapuram Devaswom’ was arrayed as the respondent- landowner. Therefore, the said George obtained Ext.P1 purchase certificate from the 4 th respondent Land Tribunal in S.M. Proceedings No.812/2009, in which Cochin Devaswom Board represented by its Secretary was not a party. 22. The specific stand taken in the counter affidavit filed by the Cochin Devaswom Board is that there is no Devaswom by the name ‘Sreekrishnapuram Devaswom’ under the said Board. The application made by the Board for obtaining a certified copy of Ext.P1 purchase certificate in S.M. Proceedings No.812/2009 issued by the 4 th respondent Land Tribunal, Thrissur, was rejected by Ext.R6(b) communication dated 05.09.2022 of the 2 nd respondent District Collector for the reason that the files could not be traced out. 23. Pursuant to the order of this Court dated 09.08.2024, the learned Senior Government Pleader has made available for the perusal of this Court the files relating to Ext.P1 purchase certificate dated 11.05.2015 issued by the 4 th respondent Land Tribunal in S.M. Proceedings No.812/2009. As discernible from the files, Cochin Devaswom Board, represented by its Secretary was not made a party in the S.M. Proceedings No.812/2009, which culminated in the issuance of Ext.P1 purchase certificate. Instead, the Devaswom Officer, ‘Sreekrishnapuram Devaswom’ was arrayed as a respondent-landowner. The notice issued to the Devaswom Officer, Sreekrishnapuram Devaswom returned as ‘refused’. The files contain an envelope in which such an endorsement was made by the postal authorities on 19.09.2010. 24. In the reply affidavit, the petitioners have not denied the specific stand taken in the counter affidavit filed by the Cochin Devaswom Board that there is no Devaswom by the name ‘Sreekrishnapuram Devaswom’ under the said Board.
The files contain an envelope in which such an endorsement was made by the postal authorities on 19.09.2010. 24. In the reply affidavit, the petitioners have not denied the specific stand taken in the counter affidavit filed by the Cochin Devaswom Board that there is no Devaswom by the name ‘Sreekrishnapuram Devaswom’ under the said Board. Therefore, it is not in dispute that Ext.P1 purchase certificate is one obtained by C.V. George behind the back of Cochin Devaswom Board, in respect of 31 cents of the land of Kuttumukku Devaswom comprised in Survey No.211/2 of Vilvattom Village. 25. Though the land in question comprised in Survey No.211/2 of Vilvattom Village belongs to Sreekrishnapuram Krishnan Temple under Kuttumukku Devaswom, which is under the management of Cochin Devaswom Board, the Board represented by its Secretary is not arrayed as the respondent- landowner in S.M. Proceedings Nos.2681/2015, 4143/2015 and 2191/2015 pending before the 4 th respondent Land Tribunal, Thrissur for the issuance of purchase certificate. As evident from Exts.P5, P5(a) and P5(b) orders in A.A.Nos.63 of 2019, 64 of 2019 and 18 of 2019, Cochin Devaswom Board represented by its Secretary was not arrayed as the respondent in those appeals filed before the Appellate Authority (Land Reforms), Thrissur. Therefore, the findings in Exts.P5, P5(a) and P5(b) orders of the Appellate Authority, touching the merits of the matter pending before the 4 th respondent Land Tribunal, Thrissur in S.M. Proceedings Nos.2681/2015, 4143/2015 and 2191/2015 are not binding on the Board. Similarly, since the Board was not arrayed as the respondent-landowner in S.M. Proceedings No.812 of 2009 before the 4 th respondent Land Tribunal, which has culminated in the issuance of Ext.P1 purchase certificate in favour of C.V. George, the findings in Ext.P2 proceedings in the said S.M. Proceedings of the 4 th respondent Land Tribunal touching the merits of the matter pending in S.M. Proceedings Nos.2681/2015, 4143/2015 and 2191/2015 are also not binding on the Board. Despite the direction contained in the order of this Court dated 15.12.2021 in W.P.(C)No.8851 of 2020, the 4 th respondent Land Tribunal, Thrissur has not chosen to implead Cochin Devaswom Board represented by its Secretary as the respondent-landowner in S.M. Proceedings Nos.2681/2015, 4143/2015 and 2191/2015. 26.
Despite the direction contained in the order of this Court dated 15.12.2021 in W.P.(C)No.8851 of 2020, the 4 th respondent Land Tribunal, Thrissur has not chosen to implead Cochin Devaswom Board represented by its Secretary as the respondent-landowner in S.M. Proceedings Nos.2681/2015, 4143/2015 and 2191/2015. 26. As held by this Court in Jayaprakashan K. [2023 (3) KHC SN 14] , in an order passed by the Land Tribunal in Original Applications/S.M. Proceedings for purchase certificate, the Land Tribunal has to record its finding that that the tenancy is not in respect of land falling under clauses (i) to (xii) of Section 3 of the Act, which deals with exemptions. In view of the provisions under clause (x) of sub-section (1) of Section 3, nothing in Chapter II shall apply to tenancies in respect of sites, tanks and premises of any temple, including sites belonging to a temple, on which religious ceremonies are conducted, and sites of office buildings and other buildings attached to such temple created by the owner, trustee or manager of such temple. 27. The land comprised in Survey No.211/2 of Vilvattom Village, which is the subject matter of the said S.M. Proceedings, belongs to Sreekrishnapuram Krishnan Temple under Kuttumukku Devaswom, which is under the management of Cochin Devaswom Board. In Ext.P3 order dated 06.06.2019, the 5 th respondent Special Tahsildar (Land Conservancy), Cochin Devaswom Board, noticed that in the Basic Tax Register, the property in Survey No.211/2 of Vilvattom Village is described as ‘Sreekrishnapurathu Parambu Puramboke’, 1.72 Acres ‘Sreekrishnapuram Ambalaparambu’. The petitioners, who have challenged the proceedings initiated against them under Ext.P3 order, by invoking the statutory remedy provided under the Kerala Land Conservancy Act, have not chosen to point out before the 4 th respondent Land Tribunal, Thrissur that the proceedings in S.M. Proceedings Nos.2681/2015, 4143/2015 and 2191/2015 is bad for non-joinder of the necessary party, i.e., Cochin Devaswom Board represented by its Secretary as the respondent-landowner. Exts.P9 to P11 revision petitions filed by the petitioners, invoking the provisions under Section 16(4) of the Kerala Land Conservancy Act are now pending consideration before the 2 nd respondent District Collector. 28.
Exts.P9 to P11 revision petitions filed by the petitioners, invoking the provisions under Section 16(4) of the Kerala Land Conservancy Act are now pending consideration before the 2 nd respondent District Collector. 28. The attempt made by the petitioners in seeking time-bound disposal of the said S.M. Proceedings pending before the 4 th respondent Land Tribunal, by invoking the writ jurisdiction of this Court under Article 226 of the Constitution of India, in this writ petition in which Cochin Devaswom Board represented by its Secretary was not originally arrayed as a respondent, has to be deprecated in the strongest words and we do so. Such conduct of the petitioners amounts to invoking the extraordinary jurisdiction of this Court under Article 226 of the Constitution of India with unclean hands. 29. Having considered the pleadings and materials on record and also the submissions made at the Bar, we deem it appropriate to dispose of this writ petition with the following directions; i) The Secretary of the Cochin Devaswom Board shall make an application for certified copies of Ext.P2 order dated 11.11.2014 and Ext.P1 purchase certificate dated 11.05.2015 of the 4 th respondent Land Tribunal, Thrissur in S.M. Proceedings No.812/2009 and also the files relating to that S.M. Proceedings, along with a certified copy of this judgment. On receipt of such an application, in accordance with law, the 4 th respondent Land Tribunal shall issue certified copies of the same to Cochin Devaswom Board within a period of two weeks. ii) After obtaining certified copies of Ext.P2 order dated 11.11.2014 and Ext.P1 purchase certificate dated 11.05.2015 of the 4 th respondent Land Tribunal, Thrissur in S.M. Proceedings No.812/2009, the Cochin Devaswom Board shall challenge the same before the appropriate forum. iii) The 4 th respondent Land Tribunal, Thrissur shall implead Cochin Devaswom Board represented by its Secretary as the respondent-landowner in the pending proceedings, i.e., S.M. Proceedings Nos.2681/2015, 4143/15 and 2191/15 for purchase certificates in respect of the land comprised in Survey No.211/2 of Vilvattom Village. The Board shall be served with copies of the reports, documents, etc., which form part of the said S.M. Proceedings, within a period of three weeks. Thereafter, the Land Tribunal shall grant reasonable time to the Board to file a statement/affidavit and produce materials to substantiate its contentions.
The Board shall be served with copies of the reports, documents, etc., which form part of the said S.M. Proceedings, within a period of three weeks. Thereafter, the Land Tribunal shall grant reasonable time to the Board to file a statement/affidavit and produce materials to substantiate its contentions. The Land Tribunal shall then proceed with the matter, in accordance with law, and pass appropriate orders, taking note of the law laid down in the decisions referred to supra and the directions contained in the decision of this Court in Jayaprakashan K. [2023 (3) KHC SN 14] , untrammelled by any observations or findings contained in Ext.P2 order dated 11.11.2014 and Ext.P1 purchase certificate dated 11.05.2015 of the 4 th respondent Land Tribunal, Exts.P5, P5(a) and P5(b) orders of the Appellate Tribunal (Land Reforms), Thrissur and Ext.P6 order dated 27.01.2020 of the 3 rd respondent Sub Collector (RDO), Thrissur, after affording both sides an opportunity of being heard, as expeditiously as possible, at any rate, within a period of two months from the date of completion of the pleadings. iv) The 2 nd respondent District Collector shall finally dispose of Exts.P9 to P11 revision petitions filed by the petitioners under Section 16(4) of the Kerala Land Conservancy Act, untrammelled by any observations or findings contained in Ext.P2 order dated 11.11.2014 and Ext.P1 purchase certificate dated 11.05.2015 of the 4 th respondent Land Tribunal, Exts.P5, P5(a) and P5(b) orders of the Appellate Tribunal (Land Reforms), Thrissur and Ext.P6 order dated 27.01.2020 of the 3 rd respondent Sub Collector (RDO), Thrissur, after affording both sides an opportunity of being heard, as expeditiously as possible, at any rate, within a period of four months from the date of receipt of a certified copy of this judgment.